Tiedemann v. Tiedemann ( 1912 )

By the Court,

Sweeney, C. J.:

It appears that Rudolph Ernest Tiedemann, a resident of Norwich, Conn., came to Carson City, Ormsby County, State of Nevada, and, through the institution of habeas corpus proceedings, attempted to obtain possession of the minor child of plaintiff and defendant. The petition for the writ was resisted by Gertrude Eleanor Tiedemann, his wife, and, after a hearing of the application for the writ upon its merits, the mother was allowed to retain possession of the child, awarded the custody thereof, and the proceedings dismissed. The respondent, while here, was sued by his wife, who filed a complaint in an action for divorce against him, alleging that she was a resident of Ormsby County, State of Nevada, stating her grounds of divorce, and prayed for alimony pendente lite, an accounting and division of community property, custody of the same child, alimony, maintenance for the child, attorney’s fee, decree of divorce, and other relief. Upon filing the said complaint, a summons was legally issued thereon and regularly served upon the defendant and respondent while in Carson City, Nevada. Upon the return of the summons, Samuel Platt, Esq., who represented respondent in the contested habeas corpus proceedings, appeared specially and moved to set aside and quash said summons upon the ground that the respondent, Tiedemann, was immune from service while in Nevada for the purpose of prosecuting the habeas corpus proceedings above adverted to. The lower court sustained his position, and made an order setting aside and quashing service of said summons. It is from this order appellant has appealed, and the respondent, Tiedemann, appearing through Samuel Platt, Esq., specially moves a dismissal of this appeal upon the ground that an appeal will not lie from an order setting aside and quashing a service of summons.

Two questions are involved for our consideration: First, did the trial court err in setting aside and quashing the service of summons; and, secondly, if so, is the order setting aside and quashing the return of summons under the circumstances appealable?

[1] We believe that the trial court erred in making the order appealed from. Section 5445 of the Revised Laws of Nevada provides as follows: "Every person who has been in good faith served with a subpena to attend as a witness before a court, judge, commissioner, referee, or other person, in a case where the disobedience of the witness may be- punished as a contempt, shall be exonerated from arrest in a civil action while going to the place of attendance, necessarily remaining there, and returning therefrom. ”

Counsel for appellant, invoking the maxim "inclusio unius est exclusio alterius,” contends that, in view of the fact that our legislature has seen fit to enumerate under what circumstances certain parties may be immune from service of process, and having made no express provision which would exclude respondent from service under the circumstances in this case,'under this well-known maxim we must hold that he is not immune from service. The argument made goes partially to the solution of the construction we should place on the ruling we make, but we have more conclusive reasons, which we deem sufficient to support our conclusion, that the respondent was not immune from the service under the circumstances of this case. It has-been properly held that "the exemption of a nonresident of a state from arrest while in attendance upon court does not extend to a writ of service of summons.” (Ellis v. Degarmo, 17 R. I. 715, 24 Atl. 579, 19 L. R. A. 560.)

The respondent, Tiedemann, it must be remembered, did not come to Nevada under compulsion as either a witness or as a suitor. He came voluntarily for the purpose of presenting a suit in his own behalf, seeking the aid of our law and our courts, as was his right to do, and in this respect our courts were open to him, and he was given a fair and impartial hearing on his contentions, and, after due consideration, his contentions were found without merit. While here, his wife, alleging herself to be a resident of Ormsby County, Nevada, saw fit to bring an action for divorce against him, wherein she too desired to have awarded to her, in a proper proceeding, the custody of the same child in question, an accounting and division of the community property she asserted title to, alimony for herself and maintenance for her child, and other substantial rights, which she desired to invoke our laws and our courts to award and protect, and regularly commenced her action and had served our process on the respondent while he was here and within the jurisdiction of the court. It is quite impossible for us, either as a matter of law or equity, to say that a nonresident can come here seeking the relief of our courts when he desires, and at the same time deny the same right to one of our Nevada citizens to sue him when substantial rights are claimed and pleaded and service made within the jurisdiction of the court in accordance with our law.

Both parties are equal before the law; both entitled to invoke the aid of our law and our courts to enforce their legal and substantial rights. Both are entitled to a hearing, and the respondent having used our court, and through its process having forced the appearance of appellant to answer the demands of the rights he contended for, there is no good or sufficient reason in law or equity why he should not be compelled to submit to the same process issued from the same court when he has been regularly served within the jurisdiction of the court, and to show cause, if any he has, why such relief prayed for by the appellant should not be awarded.

As was held in the case of Netograph Mfg. Co. v. Scrugham, 197 N. Y. 377, 90 N. E. 962, 27 L. R. A. (N. S.) 333, 134 Am. St. Rep. 886, "the exemption of a suitor or witness from process is not a natural right, but a privilege having its origin in the necessity for protecting courts from interruption and delay, and witnesses or parties from the temptation to disobey process. ”

In the present case it cannot be successfully contended that the respondent is in a position to claim immunity for either of the reasons assigned in the foregoing authority.

There seems and there ought to be a well-defined distinction recognized in the authorities 'between those who may be entitled to immunity from arrest when within the jurisdiction on civil process, as distinguished' from immunity from service of civil process, and also a well-defined line of distinction between those who may be immune from civil process when they are brought into a state through compulsion, and where they are in attendance or obedience to some character of subpena or other civil process, and where they may come voluntarily. In nearly all cases where they come within the jurisdiction by force or compulsion to attend court as a suitor or witness, they are invariably immune from criminal arrest, and nearly always from all character of civil process; but where one, as in the case at bar, comes within our jurisdiction voluntarily and without compulsion, or because of any action having been started previously against him or process attempted to be served upon him by publication or otherwise, and comes prepared to adjudicate his right to some subject-matter, as respondent was in this action, and is personally and regularly served when within the jurisdiction on matters affecting the same correlated subject-matter, and the action is brought in good faith and calls for the adjudication of substantial rights, he is in no position to resist the lawful process of the court nor claim the exemption which was successfully pleaded and decreed in the lower court in setting aside the service and quashing the summons regularly served in the action therein started.

[2] Is the order complained of of such a final nature as will permit of an appeal therefrom? Section 888 of the civil practice act provides: "A-judgment or order in a civil action, except when expressly made final by this act, may be reviewed as prescribed by this title, and not otherwise. ” In view of the substantial rights pleaded in the complaint, the order complained of, blocking" as it does, appellant’s right to proceed to a complete and effective recovery of these rights, should they be decreed to her, is, we believe, in effect a final judgment. Like a final judgment there remains nothing to be judicially determined between the parties in the trial court which can be legally proceeded with until this order, which bars a complete and effective recovery, is reversed. To hold that appellant should be forced to proceed to procure a further service on the defendant in Connecticut, or without the jurisdiction or elsewhere, when she already has a valid personal service within the jurisdiction, and to force appellant to proceed through to final judgment before she could appeal, would be a senseless construction to place upon our civil procedure act affecting final judgments and orders, and an unquestioned deprivation of the plain, speedy and adequate remedy- to which appellant is entitled.

The order of the lower court, if allowed to prevail, would deprive plaintiff of her substantial rights and the benefit of a personal service and such rights as flow from that service, to which she may be entitled. The service having been regularly made, as we have heretofore pointed out, it follows that any other service would be a mere nullity, as the summons has already served its purpose when it is served regularly and becomes functus officio. Where a service is insufficient, a second or further service to remedy or replace the faulty service is oftentimes allowable, but the first service which is regularly made renders the others which may follow of no effect. (Mayenbaum v. Murphy, 5 Nev. 383; Ency. Pl. & Pr., vol. 19, p. 575.)

The order appealed from is reversed, with instructions to the lower court to allow the defendant such reasonable time to plead or answer as may be deemed meet and proper.

It is so ordered.